The Court of Justice of the European Union has upheld the ban on wearing religious symbols at work.
Written by Josep Conesa
Employment and insolvency lawyer
The high court confirms that public authorities may prohibit their employees from wearing religious symbols at work. The same applies to private companies.
In October 2022, the Court of Justice of the EU (CJEU) gave private companies the green light to ban their employees from displaying religious symbols in the workplace, provided that the prohibition "is applied in a general and undifferentiated manner to all employees" and does not place any particular individual with specific religious convictions at a disadvantage.
According to the Court of Justice of the EU (CJEU), an internal workplace policy that prohibits employees from expressing their religious beliefs, whether verbally or through their clothing, does not constitute discrimination "on grounds of religion or belief" within the meaning of EU law, provided it is applied equally to all employees.
In a recent case, a Belgian municipality banned a female employee from wearing an Islamic headscarf. The Advocate General of the Court of Justice of the EU (CJEU) has argued that the measure does not constitute direct discrimination if it is applied "in a general and undifferentiated manner". In the case of public bodies, he considers that religious neutrality is a "legitimate aim" for upholding "respect for the convictions" of citizens and the "need to treat users of public services in an equal and non-discriminatory way". The objective is to achieve religious neutrality as a "legitimate aim" for maintaining "respect for the convictions" of citizens, and therefore does not conflict with religious freedom.
Such a prohibition is accordingly compatible with Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.
ruling OF THE COURT OF JUSTICE (Second Chamber) of 13 October 2022 (*)
«Reference for a preliminary ruling, Social policy, Directive 2000/78/EC, Establishment of a general framework for equal treatment in employment and occupation, Prohibition of discrimination on grounds of religion or belief, Internal rule of a private company prohibiting any expression of religious, philosophical or political beliefs in the workplace, Prohibition covering the expression of such beliefs verbally, through clothing or in any other manner, Wearing of a garment with religious connotations»
In Case C‑344/20,
REQUEST for a preliminary ruling under Article 267 TFEU from the tribunal du travail francophone de Bruxelles (French-speaking Labour Court, Brussels, Belgium), made by decision of 17 July 2020, received at the Court of Justice on 27 July 2020, in the proceedings between
L.F.
and
S.C.R.L.,
THE COURT OF JUSTICE (Second Chamber),
composed of Ms A. Prechal, President of the Chamber, Ms M. L. Arastey Sahún, and Mr F. Biltgen (Rapporteur), Mr N. Wahl and Mr J. Passer, Judges;
Advocate General: Ms L. Medina;
Registrar: Mr A. Calot Escobar;
having considered the written submissions on record;
having regard to the observations submitted:
– on behalf of L.F., by Ms V. Van der Plancke, avocate;
– on behalf of S.C.R.L., by Ms A. Kamp, avocate, and Mr T. Perdieus, advocaat;
– on behalf of the Belgian Government, by Ms C. Pochet, Ms L. Van den Broeck and Ms M. Van Regemorter, acting as Agents;
– on behalf of the Polish Government, by Mr B. Majczyna, acting as Agent;
– on behalf of the European Commission, by Mr D. Martin and Mr M. Van Hoof, acting as Agents;
after hearing the Opinion of the Advocate General, delivered at the public hearing on 28 April 2022;
gives the following
ruling
1 This request for a preliminary ruling concerns the interpretation of Articles 1, 2(2)(a) and 8(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000, L 303, p. 16).
2 This request has been made in the context of a dispute between L.F., the applicant in the main proceedings, and S.C.R.L., the defendant in the main proceedings, a limited liability cooperative whose principal activity consists in the letting and management of social housing, concerning the failure to consider the applicant's unsolicited application for a traineeship, owing to her refusal to comply with the prohibition imposed by S.C.R.L. on its employees against expressing their religious, philosophical or political beliefs, in particular through their manner of dress.
Legal Framework
Directive 2000/78
3 Recitals 1, 4, 11 and 12 of Directive 2000/78 read as follows:
«(1) In accordance with Article 6 [TEU], the European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles that are common to all Member States and respects fundamental rights as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms[, signed in Rome on 4 November 1950,] and as they result from the constitutional traditions common to the Member States, as general principles of [Union] law.
[…]
(4) The right of all persons to equality before the law and protection against discrimination constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of All Forms of Discrimination against Women, the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which all Member States are signatories. ILO Convention No 111 prohibits discrimination in the field of employment and occupation.
[…]
(11) Discrimination on grounds of religion or belief, disability, age or sexual orientation may undermine the achievement of the objectives of the [TFEU] Treaty, in particular the attainment of a high level of employment and social protection, the raising of the standard and quality of living, economic and social cohesion and solidarity, and the free movement of persons.
(12) To that end, any direct or indirect discrimination based on religion or belief, disability, age or sexual orientation as regards the areas covered by this Directive should be prohibited throughout the [Union]. […]»
4 Article 1 of this Directive provides:
'The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.'
5 Article 2 of that Directive provides:
'1. For the purposes of this Directive, the "principle of equal treatment" shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.
2. For the purposes of paragraph 1:
(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;
(b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons, unless:
(i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary; […]
[…]
5. This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.'
6 Article 3(1) of the same Directive provides:
'Within the limits of the powers conferred on the [Union], this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:
[…]
(c) employment and working conditions, including conditions for dismissal and pay;
[…]'.
7 Under Article 8(1) of Directive 2000/78:
'Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in this Directive.'
Belgian law
8 The loi tendant à lutter contre certaines formes de discrimination (Law to Combat Certain Forms of Discrimination) of 10 May 2007 (Moniteur belge of 30 May 2007, p. 29016), in the version applicable to the main proceedings (hereinafter 'the General Anti-Discrimination Law'), is intended to transpose Directive 2000/78 into Belgian law.
9 Article 3 of that Law provides:
'The purpose of this Law is to establish, in the areas referred to in Article 5, a general framework for combating discrimination on grounds of age, sexual orientation, marital status, birth, property, religious or philosophical beliefs, political convictions, language, current or future state of health, disability, physical or genetic characteristics, or social origin.'
10 Article 4 of that Law, which deals with definitions, provides:
"For the purposes of the application of this Law, the following definitions shall apply:
[…]
4° protected criteria: age, sexual orientation, civil status, birth, property, religious or philosophical beliefs, political beliefs, language, current or future state of health, disability, physical or genetic characteristics, social origin;
[…]
6° direct distinction: a situation that arises where, on the basis of one of the protected criteria, a person is, has been or would be treated less favourably than another person in a comparable situation;
7° direct discrimination: a direct distinction based on one of the protected criteria that cannot be justified on the basis of the provisions of Title II;
[…]".
11 Article 5(1) of the same Law provides:
"With the exception of matters falling within the competence of the Communities or the Regions, this Law shall apply to all persons, in relation to both the public and private sectors, including public bodies […]".
12 Article 7 of the General Anti-Discrimination Law provides:
"Any direct distinction based on one of the protected criteria shall constitute direct discrimination, unless that direct distinction can be objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary."
13 Article 8(1) of that Law provides:
"Notwithstanding Article 7, and without prejudice to the other provisions of this title, a direct distinction on grounds of age, sexual orientation, religious or philosophical beliefs, or disability in the areas referred to in Article 5(1), (4), (5) and (7) may only be justified on the basis of essential and determining occupational requirements."
Main proceedings and questions referred for a preliminary ruling
14 On 14 March 2018, in the context of her vocational training in office computing, the applicant in the main proceedings, who is of the Muslim faith and wears an Islamic headscarf, submitted an unsolicited application to S.C.R.L. to carry out an unpaid six-week internship there.
15 On 22 March 2018, the applicant in the main proceedings attended an interview with S.C.R.L.'s managers, at the end of which they indicated that they viewed her application favourably and asked whether she would be willing to comply with the neutrality policy that S.C.R.L. had adopted.
16 That neutrality policy is set out in Article 46 of S.C.R.L.'s internal work regulations, which provides that employees "undertake to respect the policy of strict neutrality prevailing in the company" and "shall ensure that they do not express, in any manner whatsoever, whether verbally, through their dress or in any other way, their religious, philosophical or political beliefs, of whatever nature".
17 The applicant in the main proceedings informed S.C.R.L.'s managers that she would refuse to remove her headscarf and to comply with that neutrality policy.
18 As her application had not been taken forward, the applicant in the main proceedings applied again in April 2018 for an internship at S.C.R.L., proposing to cover her head with a different type of headwear. In response to this new application, S.C.R.L. informed her that it was unable to offer her such an internship, as no head coverings of any kind, whether caps, hats or headscarves, were permitted on its premises.
19 In May 2019, having lodged a discrimination complaint with the independent public body responsible for combating discrimination and following an exchange of correspondence between that body and S.C.R.L., the applicant in the main proceedings brought a cessation action before the referring court. By means of that action, she challenges the failure to conclude an internship contract, which she considers to be based directly or indirectly on her religious beliefs, and seeks a declaration that S.C.R.L. has infringed, in particular, the provisions of the General Anti-Discrimination Act.
20 Before the referring court, S.C.R.L. argues, relying on the ruling of 14 March 2017, G4S Secure Solutions (C‑157/15, EU:C:2017:203), that its internal rules do not give rise to direct discrimination, since they treat all employees of the company equally, imposing on them in a general and undifferentiated manner, and in particular, a dress-code neutrality policy that prohibits the visible wearing of signs of religious, philosophical or political beliefs.
21 The referring court, while aware of the judgments of 14 March 2017, G4S Secure Solutions (C‑157/15, EU:C:2017:203), and of 14 March 2017, Bougnaoui and ADDH (C‑188/15, EU:C:2017:204), considers that the interpretation of the concept of "direct discrimination" given by the Court of Justice in the first of those judgments "raises serious doubts". Among the concerns expressed by that court is the assessment of the comparability of situations, which falls within the jurisdiction of the national courts. It notes that a distinction must be drawn between, on the one hand, the interpretive role of the Court of Justice and, on the other, the application of the law to the facts of the case in question, which is the exclusive competence of the national court concerned. It observes that, in the ruling of 14 March 2017, G4S Secure Solutions (C‑157/15, EU:C:2017:203), the Court of Justice relied on the finding that the internal rule prohibiting the visible wearing of political, philosophical or religious signs in the workplace was applied in a general and undifferentiated manner, but did not rule out the possibility that, on the basis of evidence not before it, the application of that rule to the person concerned might differ from its application to any other employee. Since the operative part of that ruling does not reflect this important nuance, the referring court questions whether any margin of appreciation remains for the national court, or whether it is deprived of any possibility of assessing, on a case-by-case basis, the comparability of situations when examining whether an internal rule of a private company that prohibits the visible wearing of any political, philosophical or religious sign in the workplace is discriminatory.
22 The referring court also raises the question of whether the Court of Justice, in its judgments of 14 March 2017, G4S Secure Solutions (C‑157/15, EU:C:2017:203), and of 14 March 2017, Bougnaoui and ADDH (C‑188/15, EU:C:2017:204), intended religious beliefs, philosophical convictions and political beliefs to constitute a single criterion, such that no distinction between those criteria would be necessary. That interpretation would mean reading Article 1 of Directive 2000/78 as treating 'religion' and 'belief', within the meaning of that article, as two facets of one and the same protected ground. However, placing religion on the same footing as non-religious beliefs would significantly narrow the scope of the comparator search for the person tasked with assessing the comparability of situations in the context of determining whether direct discrimination exists. Specifically, it would mean that, in the face of an internal rule such as that at issue in the main proceedings, an employee who claims to hold a religious belief could not be compared with an employee who holds philosophical convictions or political beliefs. That question would in turn give rise to a further question, namely whether a national rule that affords separate protection to religious beliefs, philosophical convictions and political beliefs, and thereby seeks to strengthen the level of protection by highlighting the distinctive features of each and giving them greater visibility, may be regarded as a national provision 'more favourable to the protection of the principle of equal treatment than those laid down in [Directive 2000/78]', within the meaning of Article 8(1) thereof. Finally, the referring court sets out a number of factual criteria which it considers relevant to determining whether a difference in treatment amounts to direct discrimination.
23 In those circumstances, the tribunal du travail francophone de Bruxelles (French-speaking Labour Court, Brussels, Belgium) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
«1) Should Article 1 of Directive [2000/78] be interpreted as meaning that religion and belief are two sides of the same protected ground, or rather that religion and belief constitute two distinct grounds, on the one hand, religion, encompassing convictions inherent to it, and on the other hand, belief of any kind?
2) If Article 1 of Directive [2000/78] is to be interpreted as meaning that religion and belief are two sides of the same protected ground, does that interpretation preclude a national court from continuing to interpret a provision of domestic law, such as Article 4(4) of the [General Equal Treatment Act], as treating religious, philosophical and political convictions as distinct protected grounds, on the basis of Article 8 of that Directive and with a view to avoiding any reduction in the level of protection against discrimination?
3) Can Article 2(2)(a) of Directive [2000/78] be interpreted as meaning that a rule contained in a company's internal workplace regulations, requiring employees "not to express, in any manner whatsoever, whether verbally, through their clothing or in any other way, their religious, philosophical or political convictions of any kind", constitutes direct discrimination where the concrete application of that internal rule reveals:
a) either that a female worker who wishes to exercise her freedom of religion by visibly wearing a symbol with religious connotations, in this case, a headscarf, is treated less favourably than another employee who professes no religion, expresses no philosophical convictions and holds no political views, and who therefore has no need to wear any political, philosophical or religious symbol;
b) or that a female worker who wishes to exercise her freedom of religion by visibly wearing a symbol with religious connotations, in this case, a headscarf, is treated less favourably than another employee who holds philosophical or political convictions but whose need to express them publicly by wearing a symbol with connotations is lesser or even non-existent;
c) or whether the female worker who wishes to exercise her freedom of religion by visibly wearing a symbol (with connotations), in the case at hand, a headscarf, receives less favourable treatment than another employee who professes a different religion, or even the same religion, but whose need to manifest it publicly by visibly wearing a symbol (with connotations) is lesser or even non-existent;
d) or whether, on the basis that a conviction need not necessarily be religious, philosophical or political in nature and could be of another kind (artistic, aesthetic, sporting, musical), the female worker who wishes to exercise her freedom of religion by visibly wearing a symbol (with connotations), in the case at hand, a headscarf, receives less favourable treatment than another employee who holds convictions of a non-religious, non-philosophical or non-political nature and who expresses them through their manner of dress;
e) or whether, proceeding from the principle that the negative dimension of the freedom to manifest one's religious convictions also implies that no one can be compelled to disclose their religious affiliation or beliefs, the female worker who wishes to exercise her freedom of religion by wearing a headscarf, which does not in itself constitute an unambiguous symbol of that religion, given that another female worker might choose to wear one for aesthetic, cultural or even health reasons, and which is not necessarily distinguishable from a simple scarf, receives less favourable treatment than another employee who expresses their religious, philosophical or political convictions verbally, since, for the worker who wears the headscarf, this represents an even graver infringement of the freedom of religion under Article 9(1) [of the European Convention for the Protection of Human Rights and Fundamental Freedoms], given that, in the absence of prejudice, the ideological significance of a headscarf is not self-evident and can generally only be ascertained if the person wearing it is compelled to disclose their motivation to their employer;
f) or whether the female worker who wishes to exercise her freedom of religion by visibly wearing a symbol (with connotations), in the case at hand, a headscarf, receives less favourable treatment than another employee who holds the same convictions but chooses to express them by wearing a beard (a form of expression not expressly prohibited by the internal rule in question, unlike expressions through clothing)?»
On the preliminary questions
First question
24 By its first preliminary question, the referring court asks, in essence, whether Article 1 of Directive 2000/78 must be interpreted as meaning that the terms 'religion or belief' contained therein constitute a single ground of discrimination, or whether, on the contrary, those terms refer to distinct grounds of discrimination.
25 In order to answer this question, it should be noted that Article 1 of Directive 2000/78 refers to 'religion' and 'belief' on the same footing, as do various provisions of primary EU law, namely Article 19 TFEU, under which the EU legislature may take appropriate action to combat discrimination on grounds including 'religion or belief', and Article 21 of the Charter of Fundamental Rights of the European Union (hereinafter 'the Charter'), which includes 'religion or belief' among the various grounds of discrimination it enumerates (see, to that effect, the ruling of 15 July 2021, WABE and MH Müller Handel, C‑804/18 and C‑341/19, EU:C:2021:594, paragraph 47).
26 The Court of Justice inferred from this that, for the purposes of applying Directive 2000/78, the terms 'religion' and 'belief' are to be regarded as two sides of 'one and the same ground of discrimination' (ruling of 15 July 2021, WABE and MH Müller Handel, C‑804/18 and C‑341/19, EU:C:2021:594, paragraph 47).
27 According to that case-law, as follows from Article 21 of the Charter, the ground of discrimination based on 'religion or belief' must be distinguished from that based on 'political or any other opinion', and encompasses both religious convictions and philosophical or spiritual beliefs (ruling of 15 July 2021, WABE and MH Müller Handel, C‑804/18 and C‑341/19, EU:C:2021:594, paragraph 47).
28 As regards the expression "of any kind whatsoever" used in connection with the convictions referred to in the employment regulation at issue in the main proceedings, it suffices to note that the protection against discrimination guaranteed by Directive 2000/78 covers only the grounds exhaustively listed in Article 1 of the Directive, meaning that it does not extend to political or trade union convictions, nor to artistic, sporting, aesthetic or other convictions or preferences. Accordingly, the protection of such convictions by Member States is not governed by the provisions of that Directive.
29 In light of these considerations, the answer to the first question referred for a preliminary ruling is that Article 1 of Directive 2000/78 must be interpreted as meaning that the terms "religion or belief" appearing therein constitute a single ground of discrimination, encompassing both religious beliefs and philosophical or spiritual convictions.
Third Question
30 By its third question referred for a preliminary ruling, which should be examined second, the referring court asks, in essence, whether Article 2(2)(a) of Directive 2000/78 must be interpreted as meaning that a provision in an employment regulation of a company which prohibits workers from expressing their religious, philosophical or political convictions of any kind whatsoever, whether verbally, through their manner of dress, or in any other way, constitutes, with respect to workers who wish to exercise their freedom of religion and conscience by visibly wearing a sign or garment of a religious nature, direct discrimination "on grounds of religion or belief" within the meaning of that Directive.
31 To answer this question, it should be recalled that the Court of Justice has indeed held that an internal rule of a company which prohibits only the wearing of conspicuous, large-scale signs of religious or philosophical beliefs may constitute direct discrimination within the meaning of Article 2(2)(a) of Directive 2000/78, in cases where that criterion is indissociably linked to one or more specific religions or beliefs (see, to that effect, the ruling of 15 July 2021, WABE and MH Müller Handel, C‑804/18 and C‑341/19, EU:C:2021:594, paragraphs 72 and 73).
32 However, in the present case, the question referred to the Court of Justice concerns a rule that prohibits not the wearing of conspicuous, large-scale signs, but the wearing of any visible sign of political, philosophical or religious beliefs in the workplace.
33 The Court of Justice has also consistently held that Article 2(2)(a) of Directive 2000/78 must be interpreted as meaning that an internal rule of a private company prohibiting the wearing of any visible sign of political, philosophical or religious beliefs in the workplace does not constitute direct discrimination 'on grounds of religion or belief' within the meaning of that provision, provided that it applies without distinction to any expression of such beliefs and treats all workers of the company equally, imposing on them in a general and undifferentiated manner, in particular, a dress-code neutrality that precludes the wearing of such signs (judgments of 14 March 2017, G4S Secure Solutions, C‑157/15, EU:C:2017:203, paragraphs 30 and 32, and of 15 July 2021, WABE and MH Müller Handel, C‑804/18 and C‑341/19, EU:C:2021:594, paragraph 52).
34 In that regard, the Court of Justice has clarified that, since any person may hold a religion or have religious, philosophical or spiritual beliefs, such a rule, provided it is applied in a general and undifferentiated manner, does not introduce a difference of treatment based on a criterion that is indissociably linked to religion or those beliefs (see, to that effect, the ruling of 15 July 2021, WABE and MH Müller Handel, C‑804/18 and C‑341/19, EU:C:2021:594, paragraph 52).
35 In reaching this conclusion, the Court of Justice recalled that the right to freedom of conscience and religion, recognised in Article 10(1) of the Charter and forming part of the relevant context for interpreting Directive 2000/78, corresponds to the right guaranteed by Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and that, in accordance with Article 52(3) of the Charter, it has the same meaning and scope as that right (ruling of 15 July 2021, WABE and MH Müller Handel, C‑804/18 and C‑341/19, EU:C:2021:594, paragraph 48). According to the case-law of the European Court of Human Rights, the right to freedom of thought, conscience and religion, as protected by Article 9 of that Convention, constitutes "one of the foundations of a 'democratic society' within the meaning of the Convention" and is "in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life" and "a precious asset for atheists, agnostics, sceptics and the unconcerned alike", contributing to the "pluralism, indissociable from a democratic society, which has been dearly won over the centuries" (ECtHR, ruling of 15 February 2001, Dahlab v. Switzerland, CE:ECHR:2001:0215DEC004239398).
36 In this regard, it should be added that the documents before the Court of Justice do not disclose any allegation that S.C.R.L. failed to apply the internal workplace rule at issue in the main proceedings in a general and undifferentiated manner, or that the applicant in the main proceedings was treated differently from any other employee who had manifested their religion or religious or philosophical beliefs through the visible wearing of signs, items of clothing, or by any other means.
37 It also follows from the settled case-law of the Court of Justice that an internal rule such as that at issue in the main proceedings may constitute indirect differential treatment on grounds of religion or belief, within the meaning of Article 2(2)(b) of Directive 2000/78, if it is established, a matter for the referring court to verify, that the apparently neutral obligation it contains places, in fact, persons who profess a particular religion or hold particular beliefs at a particular disadvantage (judgments of 14 March 2017, G4S Secure Solutions, C‑157/15, EU:C:2017:203, paragraph 34, and of 15 July 2021, WABE and MH Müller Handel, C‑804/18 and C‑341/19, EU:C:2021:594, paragraph 59).
38 However, under Article 2(2)(b)(i) of Directive 2000/78, such a difference in treatment shall not constitute indirect discrimination within the meaning of Article 2(2)(b) of that Directive if it can be objectively justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary.
39 As regards the requirement that a legitimate aim exist, an employer's wish to pursue a policy of political, philosophical or religious neutrality in relations with customers in both the public and private sectors may be regarded as legitimate. Indeed, an employer's desire to project a neutral image to its customers is linked to the freedom of company recognised in Article 16 of the Charter and is, in principle, legitimate in nature, particularly where the employer restricts the pursuit of that aim to employees who are expected to be in contact with customers (ruling of 15 July 2021, WABE and MH Müller Handel, C‑804/18 and C‑341/19, EU:C:2021:594, paragraph 63).
40 However, the Court of Justice has also clarified that an employer's mere wish to pursue a neutrality policy, while constituting a legitimate aim in itself, is not, on its own, sufficient to objectively justify a difference in treatment based indirectly on religion or belief, since the objective nature of such justification can only be established in the face of a genuine need on the part of that employer, a need which the employer is required to demonstrate (ruling of 15 July 2021, WABE and MH Müller Handel, C‑804/18 and C‑341/19, EU:C:2021:594, paragraph 64).
41 This interpretation is guided by the desire to promote, as a matter of principle, tolerance, respect and acceptance of a greater degree of diversity, and to prevent the adoption of a neutrality policy within the company from being misused to the detriment of employees who observe religious precepts requiring them to dress in a particular way.
42 In light of the foregoing considerations, the answer to the third preliminary question is that Article 2(2)(a) of Directive 2000/78 must be interpreted as meaning that a provision in a company's internal regulations which prohibits workers from expressing, whether verbally, through their dress or in any other manner, their religious or philosophical beliefs of any kind does not constitute direct discrimination "on grounds of religion or belief" within the meaning of that Directive, in respect of workers who wish to exercise their freedom of religion and conscience by visibly wearing a sign or garment with religious connotations, provided that such a provision is applied in a general and undifferentiated manner.
Second question
43 By its second preliminary question, the referring court asks, in essence, whether Article 1 of Directive 2000/78 must be interpreted as precluding national provisions intended to transpose that Directive into domestic law, which are interpreted as treating religious, philosophical and political beliefs as three distinct grounds of discrimination, from being taken into account as "more favourable provisions for the protection of the principle of equal treatment than those provided for in [that Directive]", within the meaning of Article 8(1) of that Directive.
44 In answering this question, it should be recalled at the outset that, as noted in paragraph 28 of this ruling, the protection against discrimination afforded by Directive 2000/78 covers only the grounds exhaustively listed in Article 1 of that Directive, with the result that the Directive does not extend to the political beliefs referred to in this question.
45 Furthermore, as follows from the answer given to the first question referred for a preliminary ruling, the terms 'religion or belief' appearing in Article 1 of Directive 2000/78 must be interpreted as constituting a single ground of discrimination, encompassing both religious convictions and philosophical or spiritual convictions.
46 That having been clarified, it is apparent from the request for a preliminary ruling that, by its second question, the referring court seeks, in essence, to ascertain the margin of appreciation available to Member States to adopt or maintain provisions more favourable to the protection of the principle of equal treatment than those provided for in Directive 2000/78, within the meaning of Article 8(1) of that Directive.
47 As regards the interpretation of Article 8(1) of that Directive, the Court of Justice has held that national constitutional provisions protecting freedom of religion may be taken into account as more favourable provisions, within the meaning of that provision, when examining the appropriateness of a difference of treatment based indirectly on religion or belief (ruling of 15 July 2021, WABE and MH Müller Handel, C‑804/18 and C‑341/19, EU:C:2021:594, paragraph 90).
48 In reaching that conclusion, the Court of Justice recalled that Directive 2000/78 establishes a general framework for equal treatment in employment and occupation which leaves a margin of appreciation to Member States, in particular as regards the reconciliation of the various rights and interests at stake, given the diversity of their approaches to the place accorded within their societies to religion or belief. However, the margin of appreciation recognised as belonging to Member States in the absence of consensus at EU level must be accompanied by supervision by the EU judicature, consisting essentially in assessing whether the measures adopted at national level are in principle justified and whether they are proportionate (ruling of 15 July 2021, WABE and MH Müller Handel, C‑804/18 and C‑341/19, EU:C:2021:594, paragraph 86 and the case-law cited).
49 The Court of Justice has further held that the framework thus established makes clear that, in Directive 2000/78, the EU legislature did not itself carry out the necessary balancing between freedom of thought, conscience and religion and the legitimate aims that may be invoked to justify a difference of treatment within the meaning of Article 2(2)(b)(i) of that Directive, but instead left the task of striking that balance to the Member States and their courts (ruling of 15 July 2021, WABE and MH Müller Handel, C‑804/18 and C‑341/19, EU:C:2021:594, paragraph 87 and the case-law cited).
50 The Court of Justice infers from this that Directive 2000/78 allows account to be taken of the specific context of each Member State and affords each of them a margin of appreciation within the framework of the necessary balancing of the various rights and interests at stake, with a view to ensuring a fair balance between them (ruling of 15 July 2021, WABE and MH Müller Handel, C‑804/18 and C‑341/19, EU:C:2021:594, paragraph 88).
51 In this regard, the Court of Justice has held that, when assessing the necessity of a prohibition such as that at issue in the main proceedings, it is for the national courts, in the light of all the elements of the file in question, to weigh the interests at stake and to limit the restrictions on "the freedoms concerned to what is strictly necessary" (ruling of 15 July 2021, WABE and MH Müller Handel, C‑804/18 and C‑341/19, EU:C:2021:594, paragraph 83 and the case-law cited).
52 It follows from that case-law that Article 8(1) of Directive 2000/78 does not preclude a national court from according, in the context of the balancing of competing interests, greater weight to those relating to religion or belief than to those arising, in particular, from the freedom of the company, provided that this is consistent with its domestic law. In such a case, freedom of conscience and religion may be afforded greater protection than other freedoms, such as the freedom of the company recognised in Article 16 of the Charter, protection which takes effect at the stage of assessing whether there is justification for indirect discrimination within the meaning of the case-law referred to in paragraph 39 of the present ruling.
53 It should be noted that this is not the case with the national provisions examined in the present case. Indeed, according to the explanations provided by the referring court, those provisions have the effect of treating 'religion' and 'belief' as distinct grounds of discrimination.
54 However, the margin of discretion afforded to Member States cannot permit them, or national courts, to split one of the grounds of discrimination exhaustively listed in Article 1 of Directive 2000/78 into several separate grounds, on pain of distorting the text, context and purpose of that ground and undermining the effectiveness of the general framework for equal treatment in employment and occupation established by that Directive.
55 Indeed, since the ground of discrimination of 'religion or belief' covers all workers in the same way, a segmented approach to that ground, depending on the objective pursued by the rule in question, would result in the creation of sub-groups of workers and would thereby undermine the general framework for equal treatment in employment and occupation established by Directive 2000/78.
56 This interpretation is not undermined by the argument that it might, in certain circumstances, lead to a reduction in the level of protection against discrimination on grounds of religion or religious belief, since, in a situation such as that at issue in the main proceedings, nothing appears to preclude national courts from interpreting the national provisions concerned as meaning that, in the context of balancing the divergent interests between an employee and their employer, philosophical and spiritual beliefs should enjoy the same level of protection as religion or religious belief.
57 Finally, with regard more specifically to the argument put forward by the referring court that the existence of a single criterion encompassing religious and philosophical beliefs would have the effect of reducing the level of protection against direct discrimination based on those grounds, insofar as it would hinder comparisons between workers holding religious beliefs and those holding philosophical beliefs respectively, the following observations are warranted.
58 On the one hand, as the referring court has noted, the question of comparability is only relevant for the purposes of establishing the existence of direct discrimination. However, the existence of direct discrimination is excluded in circumstances such as those of the main proceedings, as recalled in paragraph 33 of this ruling.
59 On the other hand, and in any event, the Court of Justice has already had occasion to clarify that the prohibition of discrimination laid down in Directive 2000/78 is not limited solely to differences in treatment between persons who profess a religion or hold particular beliefs and those who do not profess a religion or do not hold particular beliefs (see, to that effect, the ruling of 15 July 2021, WABE and MH Müller Handel, C‑804/18 and C‑341/19, EU:C:2021:594, paragraph 49). In other words, the existence of a single criterion encompassing religion and belief does not preclude comparisons between workers who hold religious beliefs and those who hold other beliefs, nor does it preclude comparisons between workers who hold different religious beliefs.
60 The objective pursued by Directive 2000/78 in fact supports an interpretation of Article 2(1) and (2) of the Directive to the effect that it does not limit the pool of persons by reference to whom a comparison may be drawn for the purpose of identifying "discrimination on grounds of religion or belief" within the meaning of that Directive, to those who do not profess a religion or do not hold particular beliefs (see, to that effect, the ruling of 15 July 2021, WABE and MH Müller Handel, C‑804/18 and C‑341/19, EU:C:2021:594, paragraph 50).
61 Directive 2000/78 aims, in the field of employment and occupation, to combat all forms of discrimination on grounds of religion or belief (see, by analogy, the ruling of 26 January 2021, Szpital Kliniczny im. dra J. Babińskiego Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie, C‑16/19, EU:C:2021:64, paragraph 34), it being understood that discrimination can only be found to be "based on" religion or belief, within the meaning of that Directive, where the less favourable treatment or particular disadvantage in question is suffered on account of religion or belief (ruling of 15 July 2021, WABE and MH Müller Handel, C‑804/18 and C‑341/19, EU:C:2021:594, paragraph 49).
62 In the light of the foregoing considerations, the answer to the second question referred for a preliminary ruling is that Article 1 of Directive 2000/78 must be interpreted as precluding national provisions transposing that Directive into domestic law, which are interpreted as treating religious beliefs and philosophical convictions as two distinct grounds of discrimination, from being taken into account as "provisions more favourable to the protection of the principle of equal treatment than those laid down in [that Directive]", within the meaning of Article 8(1) thereof.
Costs
63 Since these proceedings are, for the parties to the main proceedings, in the nature of interlocutory proceedings before the referring court, the decision on costs is a matter for that court. The costs incurred by those who have submitted observations to the Court of Justice, other than the parties to the main proceedings, are not recoverable.
by virtue of the foregoing, the Court of Justice (Second Chamber) rules:
1) Article 1 of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the terms "religion or belief" appearing therein constitute a single ground of discrimination, encompassing both religious beliefs and philosophical or spiritual convictions.
2) Article 2(2)(a) of Directive 2000/78 must be interpreted as meaning that a provision in a company's internal regulations that prohibits workers from expressing their religious or philosophical beliefs, whether verbally, through their clothing, or in any other way, does not constitute direct discrimination "on grounds of religion or belief" within the meaning of that Directive, in relation to workers who wish to exercise their freedom of religion and conscience by visibly wearing a sign or garment with religious connotations, provided that such a provision is applied in a general and undifferentiated manner.
3) Article 1 of Directive 2000/78 must be interpreted as precluding national provisions transposing that Directive into domestic law, where those provisions are interpreted as treating religious beliefs and philosophical convictions as two separate grounds of discrimination, from being taken into account as "more favourable provisions for the protection of the principle of equal treatment than those provided for in [that Directive]" within the meaning of Article 8(1) thereof.
Signatures
